Many developments have occurred in the context of litigation to overcome its prohibitive time and money costs and achieve the overriding purpose of the Civil Procedure Act 2005 (NSW): That is, the ‘just, quick and cheap resolution of the real issues in [court] proceedings.’[1] However, joint experts, whilst great in theory, sometimes have just the opposite result.

Joint experts?

A joint expert appointment is generally speaking when:

a single expert is retained to opine on a given subject matter and that expert is instructed jointly by both parties, or by the court. The parties are encouraged to agree on a single set of instructions. However, where parties fail to agree on such instructions, separate instructions may be given by each party and the areas of disagreement are documented.[2]

In Australia, each court’s specific rules for joint expert appointments differ. For example, in the Family Court, single experts can be appointed by consent of the parties or by Court order[3] and in Queensland, the Supreme Court requires parties to use a joint expert unless the Court orders otherwise.[4]

Once it is established that the parties will use a single expert, in general, one party will create a shortlist of experts and forward it to the other for selection (this feature has been integrated into the ExpertsDirect website).

Why are single experts appointed?

The aim of appointing joint experts is to have only one expert retained by all parties instead of one for each party. This would result in significant time savings for courts, money saved for each party, and reduced hassle for all involved.

Furthermore, it is hoped that it will reduce the perception of experts as ‘hired guns’. Extending this theory, it is hoped that judicial decisions will be more accurate, settlements entered more expediently and that less of the evidence will be dictated by the strength of one expert’s advocacy.

Sounds perfect?

Well, that was all in theory – as usual, the reality is slightly different. The first point to note is that the adversarial system exists for a reason. Often experts have different opinions for genuine reasons, and are not just ‘hired guns’. By allowing them to ventilate their differing views, the Court is getting a more wholesome picture.

Secondly, and most importantly, it has been shown in practice to potentially increase costs for the parties due to the use of ‘shadow’ experts, otherwise known as ‘dirty’ experts. This is done for a myriad of reasons including, but not limited to, aiding in understanding the single expert’s opinion or providing firepower for cross-examination. The result is that one extra witness is often retained. For example, in a two-party case, there is one joint expert and a further two experts, one for each party.

Moving forward

The first consideration is to what extent experts will be used in the future. All jurisdictions may follow the Supreme Court of Queensland’s lead and require parties to use joint experts. However, given that jurisdictions have not yet followed suit, it is unlikely that they will in the future.

The next consideration is to identify situations where joint experts are likely to achieve the overriding purpose of the Civil Procedure Act 2005 (NSW), or more accurately, do not result in the downsides discussed above. Therefore, it’s much more likely that we will see joint experts used in two situations. First, cases/issues where the required expertise is in ‘a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions’,[5] such as valuation cases.[6] Secondly, in situations where parties are unlikely to retain shadow experts, which will likely be ‘low-stakes’, simple litigation.

The last consideration is whether there are any positive actions courts can take in order to address the identified issues. One method is to ban the use of ‘shadow experts’. However, this is fraught with problems. Most importantly, parties retain shadow experts in order to test the single expert’s opinion, and to deny them this right would not only be unfair but result in less just results. Further, it could limit the scope of Counsel’s areas of work, as advocates will gain an advantage in cross-examination if they develop more ‘expertise’ in a certain factual area.

To conclude

There is no doubt that by pursuing new and innovative methods of trial management courts will improve the justice system. However, the use of joint experts is by no means a panacea. The courts should pay close attention to situations where joint experts can actually facilitate ‘just, quick and cheap resolution of the real issues in [court] proceedings’.[7]